Posted by: Patricia Salkin | November 6, 2012

N.J. Appellate Court Finds Town Invalidly Denied Tower Variances

New York SMSA, doing business as Verizon Wireless (hereinafter “Verizon”), planned on constructing a 130 foot monopole telecommunications tower within the Township of Colts Neck.  Verizon sought zoning variances from the Zoning Board of Adjustment of Colts Neck (hereinafter “ZBA”), but was denied.  Verizon appealed the denial to the Superior Court of New Jersey, Law Division, which after a remand and another ZBA denial, held a trial and found for Verizon.  The trial court granted the necessary variances and site plan approval.  The ZBA appealed to the Superior Court, Appellative Division, which affirmed.

The ZBA argued that the trial court’s determination was erroneous because the court essentially usurped the fact-finding function from the local authorities.  Specifically, the ZBA alleged three errors by the trial court: that it failed to defer to the ZBA; it ignored the presumption of validity; and, it erroneously substituted its judgment.  The Appellate Division stated that when reviewing local decisions, the court is not to substitute its judgment for that of the local board, but rather should only overturn the local action were it was arbitrary, capricious or unreasonable.  The court is to look to the record and determine whether there is support for the local decision.  Since variances should be granted “sparingly,” a denial will be granted more deference, and the challenger bears a heavy burden.

In review of the record, the Appellate Division found that the evidence in favor of Verizon’s application was compelling.  Under New Jersey law, in order to obtain a variance, applicants must satisfy both the negative and positive criteria.  With a use variance, the positive criteria requires the applicant show the “use promotes the general welfare because the proposed site is particularly suitable for the proposed use.”  When applications concern wireless communications towers and the applicant holds an FCC license, as is the case in this matter, the “general welfare” aspect of the standard is generally established.  However, the court must then determine whether the site is suitable for the tower.

The ZBA had determined that the site was not well suited for the use of a communications tower, but the Appellate Division disagreed.  Verizon presented unrebutted expert testimony, two written reports, propagation maps and call data, which supported Verizon’s claim that a coverage gap existed.  In addition, the ZBA’s own expert testimony added more support to Verizon’s application, rather than detract from it.  In reviewing the coverage maps, the Appellate Division found the gaps in coverage were more than de minimus and supported the trial court’s finding of site suitability for the tower.

The Appellate Division then addressed the use variance negative criteria.  The negative criteria requires the applicant to show that the granting of the variance will not result in a “substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.”  In a communications tower case, the Supreme Court of New Jersey has provided that the variance should be denied where the negative criteria outweigh the positive criteria.  In this case, the ZBA claimed the aesthetic impacts outweighed the benefits provided by the tower.  The court found the evidence on the record contradicted this finding, as a visual study was conducted and found “the visual impact does not cause substantial detriment to the public good.”  The court found the ZBA’s finding had no support in the record, affirming the trial court’s ruling that the ZBA acted arbitrarily, capriciously and unreasonably.  As a result, the Appellate Division found the trial court appropriately granted a use variance to Verizon.

In addition, the court also affirmed the trial court’s grant of dimensional variances.  Usually, a variance to stray from dimensional requirements is obtained through a separate procedure than a use variance.  However, the Appellate Division felt that in this case it was appropriate for the use variance procedure to subsume the dimensional variance procedure, as the proposed deviations were de minimus and the positive criteria clearly outweighed any harm to the public.

New York SMSA v. Zoning Bd. of Adjustment, 2012 WL 5187930 (N.J. Super. A.D., 10/22/ 2012).

The opinion can be accessed here.

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